JAMES MCCLAIN v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-06066-12T3

JAMES MCCLAIN,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________

May 13, 2015

Submitted December 15, 2014 Decided

Before Judges St. John and Rothstadt.

On appeal from New Jersey Department of Corrections.

James McClain, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Alex J. Zowin, Deputy Attorney General, on the brief).

PER CURIAM

James McClain, an inmate at Northern State Prison, appeals from the June 25, 2013 final administrative decision of the Department of Corrections (DOC) adjudicating him guilty of institutional infraction *009A, the misuse or possession of an electronic device by an inmate "assigned to a Residential Community Release Program." N.J.A.C. 10A:4-4.1(a). In his appeal, he argues

POINT I

[T]he hearing officer stripped [appellant] of his Constitutional Protection Procedural Fairness. The *009 Infraction, there is no Physical Evidence, no [] Compliance with my Polygraph Request and no Credible Proof [was] Present at the Administrative Hearing to Support a Guilty Finding.

. . . .

There was no Substantial Credible Evidence. Hence the Decision Violate[d] Appellant[']s Right to Due Process.

We considered appellant's argument after our review of the record and in light of the applicable legal principles. We affirm.

We discern the following facts from the record.

According to appellant,1 at approximately 4:00 p.m. on June 1, 2013, while participating in a Residential Life Program at the Kintock facility, he went to use one of the rest rooms. As he approached, he saw Corrections Manager Edward Harris approaching the same rest room. Upon appellant's entry into the rest room, he went into one of the stalls. Within moments, Harris asked appellant to come out from the stall and appellant immediately complied. Harris went into the stall, got down on the floor and examined the area around the toilet. While doing so, Harris repeatedly asked appellant what he was doing to which appellant replied "nothing" and "I was getting ready to use the [b]athroom." Another inmate was present for this encounter but Harris did not say anything to him. After Harris came out from the stall, he instructed appellant to accompany him to "operations." Shortly after the two arrived at operations, Harris charged appellant with a "257 [v]iolat[ion of] a [c]ondition of [a] [c]ommunity [r]elease [p]rogram." According to appellant, a cell phone was never recovered and there was no evidence of any infraction.

Harris related a different version of the events leading to appellant's charge. According to Harris' disciplinary report

At approximately 4:10 p.m., [I] was conducting a routine walk-through of [the] bathroom . . . when I observed [appellant] with a cell phone in his possession. The inmate was attempting to obtain a signal in order to dial out. [Appellant] refused to surrender the cell phone when directed to do so. The inmate walked into a stall and concealed the phone on his person. [Appellant] then removed the phone from his person and passed it to another inmate. The unidentified inmate fled the bathroom with the phone . . . .

According to the DOC's records, Sargent Henry J. Busey delivered a copy of Harris' report with the charges to appellant and advised him of his rights, which were also printed on the document Busey delivered. Busey also attempted to conduct an investigation. Appellant told Busey, however, he did not want to give a statement but would do so at a hearing. Appellant did not request any statements from witnesses either. He did request the assistance of counsel substitute. Busey recommended the matter be referred "to courtline due to nature of [the] charge."

Prior to his hearing, appellant was asked if he wanted to have any witnesses called or whether he wanted to cross examine any of the DOC's witnesses. Appellant did not want to do either. However, appellant requested a polygraph test be administered. Prior to the hearing, the institution's administrator denied his request because "[t]he hearing officer at [appellant's] hearing [could] address any issues of credibility." At the hearing, appellant denied having a cell phone and his counsel substitute argued that since no cell phone was recovered, the charges could not stand.

The hearing officer considered Harris' report and appellant's statement. Also, the hearing officer was not able to view what was purported to be a video of the incident because the prison's equipment was not compatible with the equipment used to record the event. After considering the evidence, the hearing officer concluded appellant was guilty of the charge as the hearing officer had no reason to disbelieve Harris. The hearing officer imposed sanctions on appellant that included ninety days of administrative segregation because, in his view, appellant breached a "trust" by having the cell phone when he should have been "setting an example for others to follow."

Appellant appealed the hearing officer's determination to Northern State Prison's assistant superintendent, who upheld the hearing officer's determination. The assistant superintendent stated the reasons for his decision

There was compliance with [] N.J.A.C. Title 10A on inmate disciplin[e] which prescribes procedural safeguards. The decision of the Hearing Officer was based upon substantial evidence. The sanction was proportionate to the offense.

This appeal followed.

The scope of our review of an agency decision is limited. "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)); see alsoSzemple v. Dep't of Corr., 384 N.J. Super. 245, 248 (App. Div.), certif. denied, 187 N.J. 82 (2006). "Our role is to engage in a careful and principled consideration of the agency record and findings." DeCamp v. N.J. Dept. of Corr., 386 N.J. Super 631, 636, (App. Div. 2006) (citation and internal quotation marks omitted). However, "[w]e cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005) (citing Henry, supra, 81 N.J. at 579-80). Substantial evidence has been defined alternately as "such evidence as a reasonable mind might accept as adequate to support a conclusion," and "evidence furnishing reasonable basis for the agency's action." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (citations and internal quotations marks omitted).

We are satisfied that appellant's challenge to the sufficiency of the evidence lacks merit and does not warrant discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(2). The hearing officer and the assistant superintendent were justified in making a credibility determination and finding the facts based upon Harris' unchallenged, detailed description of the events leading to appellant's charge, especially when confronted with only appellant's simple statement that he did not have a cell phone.

The fact that appellant's request for a polygraph test was denied does not change the outcome of his appeal. A request for a polygraph examination should be granted only "when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 20 (App. Div. 2005). Fundamental fairness may be implicated when credibility is placed in issue by competing statements

[A] prison administrator's discretion must be guided by whether the request for a polygraph if denied will impair the fundamental fairness of the disciplinary proceeding. Impairment may be evidenced by inconsistencies in the [corrections officer's] statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf. Conversely, fundamental fairness will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility.

[Id. at 24.]

Without a serious question being presented as to Harris' statement such as inconsistencies or contravening witnesses' testimony, "or some other extrinsic evidence involving credibility" a polygraph examination was not warranted. Ibid.

Affirmed.

1 These are allegations appellant stated in his brief on appeal to us. He never testified to these allegations at his hearing before the hearing officer.